01 February, 2023
Following on from the decision in DSN v Blackpool Football Club Ltd  EWCA Civ 1352, the High Court were asked to consider principles of vicarious liability in the matter of MXX v A Secondary School  EWHC 2707 (QB).
In MXX v A Secondary School the Claimant, a pupil of the school, sought damages from the defendant on the basis that it was vicariously liable for a serious sexual assault that was perpetrated by PXM. PXM had been on work experience at the school some months prior.
PXM undertook one week's work experience at the school when he was 18 years old. He had approached the school to undertake the placement as he was aspiring to become a Physical Education Teacher. The placement was completed by PXM in February 2014 and the pupil, then 13, was later assaulted by PXM in August 2014. PXM later plead guilty to the assault in November 2015. The claimant sought damages of £27,500.00 claiming that the school was vicariously liable for PXM's proven torts.
The Judge found in favour of the defendant by applying the two stage test as set out in the judgement of Lord Philips in The Catholic Child Welfare Society v Various Claimants (FC) and The Institute of the Brothers of the Christian School and others  UKSC 56.
Stage 1 - is to consider the relationship between the defendant and the primary tortfeasor and to see whether it was one that was capable of giving rise to vicarious liability. The court held;
The Court held that the first stage of imposing vicarious liability was not satisfied, and the school was not vicariously liable for the torts committed against the claimant.
Stage 2 - Judge Carmel Wall concluded that there was no vicarious liability under Stage 1 of the test, however she did consider Stage 2 namely whether the abuse was 'closely connected' to PXM's duties on behalf of the school. She found that;
Judge Carmel Wall therefore concluded that even if the first Stage of the test had been established the second Stage of the test would not have been satisfied.
This case continues to follow a spate of claims which have looked at expanding the boundaries of the doctrine of vicarious liability and this is another case in which vicarious liability was not established.
Judge Carmel Wall said;
"…it is my finding that the entirety of the wrongdoing occurred many weeks after PXM's relationship with the Defendant had ceased. That is a fundamentally different factual matrix from wrongful conduct that begins while the tortfeasor is in a relationship with a Defendant and continues outside or beyond the scope of that relationship - whether out of hours or after the relationship has ended".
This judgement will be important to the many businesses, charities, local authorities and schools who welcome on to their premises those seeking work or volunteering experience. An adverse outcome may well have seriously impacted upon their willingness to offer valuable opportunities to those seeking to make an informed decision about their future career aspirations, or have severely impacted the nature and quality of work experience offered in light of the heightened risk of a VL finding should an issue arise.
As ever, each case must be looked at on its own facts. Helpfully, it would appear that the Courts are continuing to apply the two stage test when establishing vicarious liability.
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